FILED

DALLAS COUNT
6/25/2018 4:29 PM
FELICIA PITRE
DISTRICT CLER

CASE NO. DC-17-00183

ORIGIN RELEASING, LLC 1N THE DISTRICT COURT

Vs. 116T“ JUDICIAL DISTRICT

HANNOVER HOUSE, INC. DALLAS COUNTY, TEXAS

DEFENDANT’S RESPONSE TO PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, DEFENDANT, HANNOVER HOUSE, INC. and files this response to

Plaintiff’s motion for partial summary judgment and in support would show the Court as follows:

I.

Defendant would show that there are disputed material facts in this case that would

prevent the Court fiom granting a partial summary judgment in this case. There are many

disputed material facts at issue that should prevent summary judgment being granted.

1. Plaintiff asserts in its paragraph 1 that this case concerns three contracts entered

into between Plaintiff and Defendant. This isn’t true as the contracts were entered

into between Defendant and three other companies. The contracts were actually

entered into between Defendant and Boggy Creek Productions LLC, Humans vs

Zombies Productions LLC and Patient Zero Productions LLC. See Plaintiff’s

exhibits l-A, l-B, and 1-C.

2. Plaintiff does not appear to be the owner or assignee of the contracts or the

Movies at issue in this case. Plaintiff has not provided the Court With any

assignment ofthe 3 contracts at issue in this case to the named Plaintiff. The

assignment that is referenced in Plaintiff s motion as exhibit l-I is an assignment

from Boggy Creek Productions LLC, Humans vs Zombies Productions LLC and

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 1
 Patient Zero Productions LLC t0 Bryan (Niko) Foster. There is no mention of

Origin Releasing LLC being any part of this Transfer Agreement. There is n0

evidence 0f any assignment or transfer 0f any 0f the Movies to Plaintiff in the

summary judgment motion. Plaintiff’s lack of standing is a material fact in

dispute in this case. Plaintiff would need t0 show how they became the owners of

the 3 movies at issue in this case. Plaintiff’s summary judgment evidence shows

that Bryan (Niko) Foster is currently the owner of the Movies and that Plaintiff is

not the owner at this time.

3. Defendant would show there is a disputed material fact regarding Plaintiff s claim

in paragraph 14 that “Plaintiff s Assignor and/or predecessors in interest Boggy

Creek Production, LLC, Phoenix Group Releasing, LLC Lionshare Pictures, LLC,

entered into the Boggy Creek Agreement With Defendant.” Defendant disputes

that Plaintiff is an assignee of the Boggy Creek Movie as there is no evidence of

any such assignment. In addition there is no evidence that Phoenix Group 0r

Lionshare Pictures were parties to the Boggy Creek Agreement.

4. Defendant would show there is a disputed material fact regarding Plaintiff s claim

in paragraph 15 that “Plaintiff s Assignor and/or predecessors in interest, Humans

vs Zombies, LLC, Phoenix Group Releasing, LLC Lionshare Pictures, LLC,

entered into the Humans Agreement With Defendant.” Defendant disputes that

Plaintiff is an assignee of the Humans vs Zombies Movie as there is no evidence

of any such assignment. In addition there is no evidence that Phoenix Group 0r

Lionshare Pictures were parties to the Humans Agreement.

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 2
 5. Defendant would show there is a disputed material fact regarding Plaintiff s claim

in paragraph 16 that “Plaintiff s Assignor and/or predecessors in interest, Patient

Zero Productions, LLC, Phoenix Group Releasing, LLC Lionshare Pictures, LLC,

entered into the Patient Agreement With Defendant.” Defendant disputes that

Plaintiff is an assignee of the Patient Zero Movie as there is no evidence 0f any

such assignment. In addition there is no evidence that Phoenix Group or

Lionshare Pictures were parties t0 the Patient Agreement.

6. Defendant would deny and claim there is a material fact dispute about the claim in

paragraph 18 that Defendant failed to provide “the contractually required sales

and accounting information.” Plaintiff’s own evidence in Exhibit 2 are royalty

reports fiom Phase 4 Films Inc. for several films for September and December

2012. Phase 4 Films was providing royalty reports to the Movies owner.

7. Defendant would deny that it ever ordered thousands of units of the 3 Movies at

issue in this case in May 2013 fiom Phase 4 Films as claimed in paragraph 26 of

Plaintiffs motion. Defendant believes this is a Phase 4 record showing returns

from vendors to Defendant. The number of units noted is very close to the actual

number of units received as unsold fiom Phase 4 much earlier. The document

shows a ship to address on Wilshire Blvd Los Angeles CA and Defendant has

never had an office in Los Angeles. Defendant did have multiple copies of the

Movies in its warehouse for a long period of time. Defendant had been told to

strip the dVds oftheir packaging by counsel for Plaintiff. This exercise cost

Defendant more than $5,000.00.

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 3
 8. Defendant also denies that “afier the termination of the Agreement, it was still

selling the movies.” as claimed in paragraph 27. Defendant would show that the

Sales by Item Detail” reports show sales afler the termination as this was allowed

under the termination agreement which had a 6 month sell off clause.

9. Defendant also denies that it was purposely selling the Movies 0n Amazon as

claimed in paragraph 28 as Amazon was a consignment agreement and they had

copies ofthe movies and would sell them as needed. It was difficult to stop this

process with Amazon.

10. Defendant denies that it was attempting to sell the Movies through other means as

claimed in paragraph 29. Plaintiff s affidavit by Foster fails to provide any details

about the claimed sales by Defendant directly or through another distributor.

11. Defendant would also deny the claimed material fact that it failed to pay monies

owed under the agreements. Defendant would have claims of its own against any

monies earned by the Movies for its credits for returns, any HHSE sales fees,,

manufacturing costs, marketing costs or fieight for the 3 Movies and other titles.

12. Defendant would also show that Plaintiff has failed to provide additional proof or

evidence that would have been obtained fiom Phase 4 Films Inc. Phase 4 Films

would have been able to provide critical evidence of the Movies distribution

figures for the time when that job was being performed by Phase 4.

13. Defendant would assert a disputed material fact in paragraph 37 Where it is

claimed that Defendant admitted it owed money to Plaintiff. The email was

admitting money owed to Brian Jaynes of Boggy Creek and Whatever company he

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 4-
 was in September 2012. In addition, the email was sent prior to the later

knowledge 0f extensive product returns that completely changed the picture.

14. Defendant would also assert that there is a disputed material fact raised by the

Foster affidavit between paragraph 4 and 5 in that the affidavit discusses the offer

made by Defendant t0 the 3 companies which are exhibits l-A, l-B and l-C. He

then states the Defendant’s offer was revised by the three companies and the same

exhibits are mentioned. It is impossible that the offer and revised acceptance

could be in the same agreements. There would have t0 be a change in the

documents to be the original offer, the revised offer and the acceptance.

15. In the Foster Affidavit paragraph 6 it states that Origin’s predecessor’s transferred

the rights to the Movies to Bruce Kahn and Niko Foster. “We then transferred

those rights to the company that is the Plaintiff in this lawsuit, Origin Releasing,

LLC.” There is no evidence t0 support these statements in the Foster affidavit.

There is a transfer agreement from the 3 entities to Niko Foster only but not to

Mr. Foster and Mr. Kahn nor any evidence supporting a fithher transfer to the

Plaintiff in this case.

16. With regard to Plaintiff s quantum meruit claim, Defendant would dispute that

Plaintiffperformed its obligations under the Agreements (P 42) as they were not a

party to any of the Agreements. Plaintiff is not the owner of the Movies not the

Agreements. Bryan Foster is the owner ofthe Movies and the Agreements based

upon the evidence provided. There is no evidence that Plaintiff Origin Releasing

LLC had anything to do with the Movies or the Agreements.

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 5
 II. Defendant’s Objections t0 Plaintiff’s Evidence

Defendant would also raise objections to the evidence submitted by Plaintiff in support of

its motion for partial summary judgment. Defendant seeks a ruling by the Court 0n each of its

objections t0 Plaintiff’s evidence. Defendant’s objections to the Plaintiff’s evidence are as

follows:

17. Defendant would object t0 the entirety of the Bryan Foster affidavit as it fails t0

show affirmatively the basis for Mr. Foster’s knowledge of the facts contained in

the affidavit. To constitute competent summary judgment evidence, affidavits

must be made on personal knowledge, set forth facts as would be admissible in

evidence and show affirmatively that the affiant is competent to testify to matters

stated therein. See TEX. R. CIV. P. 166a(f). In paragraph 3 the affidavit discusses

actions ofthe predecessor companies without showing any basis for Foster’s

knowledge ofthose facts. The same complaint can be made ofthe statements in

several other paragraphs. Foster fails to show how he would know of these actions

and negotiations. Defendant requests that the Court strike either the entirety of the

Foster affidavit or paragraphs 3, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, and 16.

18. Defendant objects to the documents attached to and made a part ofthe Foster

affidavit for lack of a proper predicate. The removal of the Foster affidavit in

Whole or in part impacts the documents attached to the Foster affidavit. Defendant

would object to the documents attached to the Foster affidavit as hearsay. Foster

claims the entire set of documents attached to the affidavit are business records of

Plaintiff but there is no evidence showing that Plaintiff owns the Movies this case

is about. There is no chain of title to show how the entire set of documents would

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 6
 have anything t0 do with Plaintiff. Defendant requests that the Court sustain

Defendant’s objection t0 the Foster affidavit documents.

Wherefore, Defendant requests that the Court sustain Defendant’s objection t0 the Foster

affidavit, the Foster affidavit objections, and deny Plaintiff’s motion for partial summary

judgment, and for such other and further relief t0 which it may be entitled.

Respectfillly Submitted,

/s/James B. Carroll
James Brendan Carroll III
501 Elm St # 385
Dallas Texas 75202
James.Carrolll23@sbcglobal.net
Telephone 214-760-7788
Facsimile 214-540-1210
StateBar Card # 03886700
Attorney for Defendant

Certificate of Service

A copy ofthis pleading Will be served upon opposing counsel for Plaintiff on this the
25th day of June, 201 8 through the TX EFiling system.

/s/ James B. Carroll

James Brendan Carroll III

Defendant’s Response to Plaintiff Motion Partial Summary Judgment

Origin Releasing V Hannover House, Inc. Page 7